There is a common misconception that copyright is only relevant to a small proportion of creative businesses. However, we have seen it help all kinds of businesses to prevent copycats, and to strengthen brand protection. It's an automatic right, so no registration fees, but preparation is required to enable copyright to be used to its full potential.
How copyright can help your business - ThinkHouse
John Coldham: This webinar is on copyright and it is the last in our series covering advertising, brands, copyright and designs our so called a, b, c, d of soft IP. It has been and continues to be a difficult time for everyone so we are so grateful that you have chosen to give up some of your precious working day to spend it with us.
We have been delighted with the engagement you have shown through the thoughtful questions you have asked, the number of you who have provided helpful feedback and the number of follow up queries you have contact us about afterwards. It has been such a shame not to be able to see you in person as we normally would for our seminars but, every cloud has a silver lining and I know there are a number of people who have found this webinar format very helpful as it has meant you have been able to join when otherwise you might not have been able to. In fact somebody has just commented that they have joined from Malaysia so welcome to you.
Copyright is something many people have a conception about but not many people really understand properly. Perceived to be the exclusive domain of writers, artists and musicians many under estimate the value it can provide to companies more generally. We are increasingly finding that clients are not only becoming more aware of copyright but they are using it to great effect, sometimes copyright has been the deciding factor in our cases where other rights are perhaps falling short. Copyright is useful for every business, sometimes in minor ways and sometimes in more important ways but you will not know how it is useful unless you understand its potential and plan ahead so you are able to deploy it when you might need it.
To help you make the most of your copyright because you all have some, I am very pleased to introduce you to Khemi Salhan a rising star in our team. Khemi has the misfortune to do most of her work with me, from helping clients to understand how best to use their IP to helping them to use that IP to prevent others from ripping them off. Khemi's most recent case was the Freddie case I talking about in our last webinar and she also works for clients ranging from Aston Martin to Joseph to Unilever.
One of Khemi's key areas of focus for her practice is copyright, having advised on the implications of the European copyright directive and on the implications of recent case law on copyright protection for products. Therefore I can think of no better person to introduce you to some of the key themes of copyright law in a practical, commercially relevant overview. Khemi no pressure, over to you.
Khemi Salhan: Thank you for the introduction John. Good morning everyone its really great to be talking to you all today about copyright and what brand owners need to know about copyright so I just want to take you through the things that we are going to be looking at over the next 45 minutes.
So firstly I just want to discuss why we should use copyright, why brand owners should be thinking about copyright and then how brand owners can use it. So first we will look at the benefit and some of the common pitfalls but then we will move on to specific examples of how brand owners can use it as part of their brand enforcement arsenal. Finally I am going to come on to look at some of the more recent developments in UK case law about copyright and design protection overlap. That just gives you an idea of the sort of things we are going to cover.
So looking first at why use copyright. On this slide I have just set out some brief bullet points about some of the benefits about copyright. Copyright is often overlooked by brand owners when it comes to thinking about protection of their brands in favour of some of the registered rights, designs or trademarks and even in favour of some of the unregistered rights by passing off trademarks and designs are really useful tools to have. Copyright has a number of benefits that can be very useful if you find yourself in a bind or when you discover somebody is infringing your works.
So just taking each of these in turn, firstly copyright in the UK is free, you don't have to pay to register it so unlike a trademark or a registered design and this is particularly useful if you are launching a new product or if you are launching a new brand or if you are launching a new sub-brand, you are trying out a new slogan or something, it just gives you the opportunity to see if that works and see whether you like it before you may then pay to register it as a trademark or register a design for it. I do mention that with a caveat and that is that it does vary from jurisdiction to jurisdiction so I know for example in China and the US you do have to pay to register it, so it is worth checking wherever you are thinking about using copyright but in the UK it is free.
The second point is that in the UK and EU copyright arises automatically on creation so copyright protects the expression of an original creation, so something must be fixed in some form, so when you have a creative idea once that is expressed, once it is written down, once it is drawn, once it is put into clay, whatever it might be, once that is expressed you automatically attract copyright protection and there are no other real formalities to think about.
Thirdly, copyright lasts for a really long time but for most of the works that I will come on to talk about, it lasts for the duration of the creator's life plus a further 70 years so for a right that is free and that you do not have to do anything to register, that's really beneficial. You have sustained long lasting protection for an original and creative work. I have said here that it is a flexible right because copyright can protect many different rights within a singular item. This is a bit of old school reference, but if you take a CD for example and if you think about when you look at the cover of a CD there will be some artwork on the front, whether that's a photograph or a drawing and then you might open up the CD and inside there is the booklet with all of the lyrics written down, they will be protected by another copyright and then on the CD itself you have the composition and the arrangement of the music and that is another copyright and you might even have additional artwork on the front of the CD, so those different layers of rights within what might be perceived to be a single product can be really beneficial to target any infringers using your original creations. So this is one way in which it is flexible, another thing is that copyright is constantly adapting to cover more recent developments and changes in technology so if you are thinking about software and databases and social media, each of those attract different copyright protection. And so that is just another way in which the right can be considered quite flexible. I'm going to come to talk about some of the more recent developments in relation to design protection later on and that will give a working example as to how copyright is quite a flexible work.
And then finally, copyright has quite broad territorial scope so if you are in a Berne Convention country there is reciprocal protection so it is much broader than say an EU registered right and so they are just a couple of the benefits.
Looking at some of the stuff that copyright protects I have put a diagram there and just set out some of the things that copyright protects. So in the top left hand corner I have put LDMA works, that stands for Literary, Dramatic, Music and Artistic Works, I am going to come on to look at those specifically in a moment but I just wanted to give you an idea of some of the other things there it protects so that you can see or consider what might be relevant to your business. It protects software, sound recordings, broadcasts with films and also typographical arrangements, so that will cover the way that words are laid out on the page and that is particularly important to newspapers and publishers but it can also be relevant if you have a product brochure. So even though it sounds specific to a type of industry it does have other applications as well so it is all about thinking about how copyright can work for you.
So looking more closely at the LDMA works I have set out on this slide the Literary, Dramatic, Music and Artistic Works and so just taking each of those in turn. The literary works are any works that are written, spoken or sung, it can cover tables or compilations and there's computer programmes and databases. We move on to dramatic works and they are works of action without words or music so it is something that is capable of being performed like dance or mime. Musical works are works consisting of music, I realise that's a bit of a circular definition but that is what the statute says so forgive that and it excludes the works that are spoken or sung or any actions performed because they would either be covered by literary works or dramatic works. Instead it covers things like the melody and the harmony and the rhythm within a piece. Then finally you are looking at artistic works and this is probably one of the broader categories. You have the graphic works so paintings, drawings, diagrams, maps. You've also got things like sculptures and photographs, collages, works of architecture and also works of artistic craftsmanship.
So looking at those and looking at those categories I realise that they all sound very artistic and creative and if you are sat there thinking "well how do these apply to me because I don't work in a creative industry in the same way?" it's worth bearing in mind that these are just how we classify copyright protected works. We use these categories for clients who work in heavy industries such as construction, clients in the real estate business, toy manufacturers, consumer goods clients so they really do apply to everybody, it's just the wording and the statute that we use to categorise the works and it's about actually what each of those categories covers. So as I'll come on to explain, literary works will protect things such as slogans and you may have artistic works in your product brochures or in some of the social media posts that you make so it is just about extracting the work that you are trying to rely on and thinking about what copyright protection they attract rather than thinking about it in a creative context first, so it is just changing that initial way that you think about it.
Before we move on to look at how brand owners can use copyright, I just wanted to set out some common pitfalls, and from my experience the most common issue that we come across when we are dealing with copyright claims is a lack of evidence or gaps in evidence. In order to be able to rely on copyright, brand owners need to be able to show that the work was fixed in some form, they need to show who created the work, when it was created and if it was created under a commission whether those rights were assigned or that the person who is using the copyright protected work has been authorised to use it whether by licence or assignment. I cannot recommend and stress the value of records enough. It is really valuable to keep records in the first place but also to make sure that they are kept up to date and that they are organised and stored in a useful and sensible way. If you haven't been doing that already it's not a massive problem, it's not life or death, it's just something that can be adopted from going forward or you can do things like go back and look at those core works that you do use and think about do you have everything in place. I will come on in a moment to explain instances of where that has really come into its own, where that has benefited brand owners.
So looking specifically at how brand owners can use copyright here I've just set out a diagram to explain some of the ways in which copyright might be relevant to a brand owner and I thought that the best way to do that would be to explain in relation to the idea of creating any products. So in the first column I've got creation of a new product, product A, and that there are many things that the brand owner or business will do to market and sell that product and each of those things that a brand owner might do will attract different copyright protection. So here I've just taken the packaging and slogans as two examples of that to show you how it might break down. So looking at the packaging first you would have some literary works in the way that the instructions might be written on the back of it or whether there are any slogans and then you also will have artistic works for the design of any labels or any drawings or photographs that might appear on the packaging. Then looking at the slogans themselves they will attract any literary protection, literary copyright protection as well and I think it's worth breaking it down in to these elements so that you can see the different things that you can rely on and also just to remind you of the benefit that each of these rights arises for free automatically on creation so it's really beneficial to both start-up businesses who are testing the waters but also for existing brands with well established product lines where they just want to see the market's reaction before they spend a lot of money registering trademarks. I appreciate that there are certain types of products where you will want to register trademarks straight away and have protection for that but there are also instances where you will want to try it out.
So taking a specific example of a case relating to a label, the design of a label, this case is about Marmite and this was a case actually that we as a firm acted on and whilst it does involve a really well-known brand, the Marmite brand, it was a very unusual set of circumstances and I'm just going to set out the background of the case so that you have an idea of what the facts surrounding that were. So in 2010, around the time of the general election, the British National Party created a political election broadcast and this broadcast had the leader of the British National Party sat at a desk giving a talk and then in the top left hand corner they had a image of the Marmite jar and then at the end of the broadcast the Marmite jar became much larger and more prominent in the centre of the broadcast and instead of the Marmite name the BNP had replaced that with the slogan "Love Britain vote BNP". Unilever are the owners of the Marmite brand and they didn't authorise the BNP's use of the Marmite jar or the logo or design for the label so they sought an interim injunction to prevent the broadcast being shown on television and Unilever claimed copyright protection, copyright infringement, trademark infringement and passing off. The claim was very urgent - it was pulled together in a matter of hours so it focussed primarily on copyright infringement but also had those other elements that I'll come on to talk about as well. In these circumstances trademarks would be the go to for a brand owner, they would think "Right, well we own the trademark for Marmite, we own a trademark for the logo, they're using that" but because this case was so unusual there were some specific hurdles that Unilever would have to overcome and then realised that this would be a difficult case. So it would be very difficult to show, for example, that the Marmite logo was being or label was being used in the course of trade because it was a political election broadcast and so it wasn't, they couldn't be said to be any sale or any advancement of trade because the BNP weren't really seeking any donation. In addition, it was very difficult to identify what goods and services the trademark was being used in relation to because again it was more of just a statement, more a broadcast and there wasn't really any intent in relation to goods and services and so that's where the copyright claim really came into its own. With copyright infringement you have to establish that a substantial part of the original work has been taken, and when I say a substantial part I don't mean quantity to be substantial, it has to be a core part of the work so it's all about the quality of what you're taking. So it's about how integral the part that has been taken is to be in original work and that's very often why you'll hear cases about three bars being used from a song, and under copyright infringement even though it's just three bars of a song it could still be an infringement. So here in the Marmite case it was clear to that the core part of the artistic copyright work in the label had been used by the BNP and that really overcame some of the problems that trademark law would have presented.
So just why I think that's relevant or interesting to you, I think even where you may consider that you are significantly well-protected because you have trademarks and because you invest in those registered rights, I'm not in any way saying that they are not valuable, but there are some gaps where they won't always work and I think that this is a perfect example of where copyright can be used to fill the gap where there has not been any trade. I realise that this is an unusual set of circumstances but you could be dealing with charities, you could be dealing with government or regulatory bodies, you could be dealing with individuals posting on social media and all of those things may be instances where there isn't trade but there may well be copyright infringement so you can't necessarily rely on trademark but you could think about using the copyright. This is really useful case to show my point about having the evidence of ownership lined up ready to go. As I said this case was pulled together in a matter of hours and so having all of that copyright ownership information in a pack ready to go really helped progress and move things along and if Unilever hadn't had a lot of the evidence like that to hand then it would've struggled perhaps to show that.
So another case that I think is really interesting about packaging and a claim for copyright infringement is this Islestarr Holdings and Aldi case. Islestarr Holdings is the corporate entity behind Charlotte Tilbury so on the left hand side with the claimant's design, that's Charlotte Tilbury's product there, and that product was called the Filmstar Bronze and Glow and the design of the packaging was created by Islestarr's employees and also by another design company and then the design company had assigned the rights back to Islestarr as well so the corporate entity behind Charlotte Tilbury held all of the copyrights. The product on the right hand side was sold by Aldi and this is sold under the Lacura brand. It's quite difficult to see but on the design in the powder you have two words embossed into the powder so you might be able to see that it says "sculpt" on one powder and "highlight" on another and it's even more difficult to see it on the Aldi one but it does say "shape" on one powder and "glow" on another. So Islestarr brought a claim for copyright infringement of both the starburst design and the powder design against Aldi and then they sought summary judgement on the grounds that they didn't think Aldi had any real prospect of successfully defending the claim. This is quite an unusual case because when brand owners are thinking about the rights that they have, it's not their instinct to think that they would have copyright protection in a powder or in the design of the packaging or a make-up product. So in terms of the powder itself the Judge said that because Charlotte Tilbury was able to provide evidence of the sketch that was underlying the powder that artistic copyright could subsist as an artistic work in the powder design because they had the underlying sketches. It didn't matter that over time as you use the powder the design would become less visible, it was clear that it was there. One point that he made about the words was that although you couldn't have copyright protection in the words themselves, the idea of the words as part of the artistic design did form part of the copyright protected work. The Judge found that both the starburst design and the powder design were original and that Aldi had taken a substantial part of that original work and the similarities between the two products can be put down to anything that was common in the industry or if nothing amounted to general ideas so it was clear that Charlotte Tilbury had come up with a creative idea and they had fixed it in the form of sketches and designs for that project and then they had manufactured the project as well. The Judge said that a lot of those ideas had appeared in the Aldi product and so the reason that I thought it would be interesting to talk about this case is because it shows the flexibility of copyright.
I think a lot of brand owners would not necessarily think that copyright would subsist in the design of a make-up powder. So it just shows that any instances where you have had genuine creative thought or a genuine original design in the process that that may attract copyright protection if it can go into one of the categories that I mentioned earlier as one of the LDMA categories. I also think this case is a really clever use of copyright. Many brand owners have struggled to bring claims against Aldi because they think about things like trademarks and passing off and there is deception or confusion for the consumer when they buy a product in Aldi because they are not selling, well very rarely they are selling the same branded goods in the Aldi store. I know that is not always the case now because they have moved in to selling some brand products but historically they had not been selling any branded products in the store. So that inability to show that the consumer was deceived or confused at the point when they were buying meant that the brand owner was essentially blocked from bringing claims against Aldi on trademark infringement and passing off. Whereas with copyright infringement you do not have to show damage to your brand, you do not have to show that you have suffered a loss, you do not have to show that consumers are confused, you just have to show that you had an original work that you own the work and that a substantial part of that work has been used by the alleged infringer. So I just wanted to use that as an example to show you some of the benefits of copyright in practice for brands.
So just moving on to the last section I wanted to talk about copyright and design protection overlap. Over the past year, there have been a couple of cases that have really pushed copyright and design law to the forefront of intellectual property lawyers' minds when considering how to protect their client's brands and these developments are not based on new law necessarily, it is more just that they really brought to the front of peoples' minds the tension between national legislation and EU legislation and I think it is really interesting to talk about these cases because they potentially open some new doors or given brand owners some ideas of how they can use copyright when they are thinking about brand enforcement. So I just wanted to give a little bit of background before launching into the cases because the cases are quite complicated. As you all know, in terms of intellectual property protection for products, it is usually done through a composite of design rights whether that is registered or unregistered design rights but also sometimes if you are lucky through trademarks, though I appreciate that they can be quite difficult to get hold of trademarks. The question is then can you have copyright protection for products or works with applied art as they have been known. So looking at our copyright categories of the LDMA work, any product will have to fall within probably the artistic category of works to attract copyright protection because it is very unlikely that a product could fall into any of the other categories. Historically, there had been a number of statutory restrictions in place that limited whether works with applied art or products could attract copyright protection but some of these have been repealed and fallen away and also this new case law that I will come on to talk about has perhaps just opened the door a bit on how copyright might be used.
So before we get on to thinking about whether a product can attract copyright protection it is worth just having a look at the way that copyright works in the UK compared to the EU. As I have mentioned earlier on in this presentation, the UK operates what is known as a closed list approach to copyright protection. You have your categories of work set out in the statute and that includes your LDMA works and work has to fall into one of those categories in order to attract copyright protection. As I have mentioned, the best category for products is artistic works and so we have to look at the options within the artistic works category to work out what can attract, or what might work for a brand owner when thinking about copyright protection in their products. The two main categories or sub-categories that come to mind within artistic works are works of artistic craftsmanship and works of sculpture. Each of those works has their own limitations so historically works of artistic craftsmanship have had to have had a quality of craftsmanship about them, they must be aesthetically pleasing and they must have been handmade or bespoke, there must be that craftsmanship quality to them. Sculptures on the other hand, must have been created for the purpose of being a sculpture, the Courts have really flagged that they will pay close attention to the real meaning of the word when thinking about whether something is a sculpture or not and whether it was intended to be enjoyed purely as a visual thing. In contrast, the EU sets a bar or operates an openness policy where the general requirement is if your work is original then it will attract copyright protection so that creates an attention at the outset between having only originality as the requirement to attract copyright protection and having something that goes a bit beyond that so having the sculpture as being something that is enjoyed purely as a visual thing or having that level of craftsmanship for works of artistic craftsmanship on top of the requirement of originality.
So that is the tension there and so the case that I am going to come on to talk about now actually is Cofemel, and Cofemel is a decision from the CJU and it looks exactly at this tension between the open and closed lists. So, G-Star the denim brand brought a claim against Cofemel for copyright infringement in Portugal for the design of a hoody and a pair of jeans. G-Star claimed that the jeans and the hoody were their own intellectual creation, which is the standard for originality in copyright law, and it should therefore be protected by copyright. At first instance, G-Star was partially successful but Cofemel appealed on two occasions so that the case was eventually considered by the Portuguese Supreme Court. The Portuguese Supreme Court noticed this tension between closed list policy and open list policy and so the previous interpretations of EU case law had held that copyright had applied to works of applied art in the same way that it applied to literary or musical work so it applied in the same way to products as it had those created industry works, let us describe them as, and that the only standard was that the work must have been the author's own intellectual creation. So in assessing this the Portuguese Supreme Court referred two questions to the Court of Justice of the European Union and they asked does EU legislation prevent member states from granting copyright protection subject to any requirements other than originality? And secondly does EU legislation allow member states to take account of other factors such as artistic character? So again that is going back to the point that we were talking about with works of artistic craftsmanship and whether there can be that other level of aesthetic appeal or additional requirements. The CJU said that works of applied art could be subject to both design right protection and copyright protection under the principle of accumulation and this was because the protection offered by design rights pursued a different aim to the protection offered by copyright and so there were different policy purposes behind copyright and design protection. They clearly said that the only qualification for something to be classed as a work was that it was original. So again that takes away all of those additional requirements that have been set out in UK national law where you are thinking about the aesthetic appeal and the craftsmanship and what the meaning of the word is. So you are now thinking only about whether that work was original and the CJU said specifically you cannot have other requirements in order for a work to be afforded copyright protection. So clearly this is quite a divergence between EU law and UK national law and I will say that this was not something that was new or something that had only just been legislated on. This was the first case that had really brought it to the front of peoples' minds in such a stark and clear way. So then the question was really about how the UK would interpret this EU case law because up until a couple of weeks ago, we were required to think about EU case law as being part of or as higher than in some cases than the Supreme Court case law.
So there was a UK case that looked specifically at this issue but from a UK angle and the case was between Response Clothing Ltd v The Edinburgh Woollen Mill Ltd. Response Clothing had supplied Edinburgh Woollen Mill with a top that had been made in a jacquard fabric and this fabric had a wave design woven into the material. During the relationship between the two parties, Response Clothing had decided that they wanted to increase the price of the top and Edinburgh Woollen Mill had said no. Instead, Edinburgh Woollen Mill sent a sample of the fabric to a manufacturer and they created a new or similar wave design. Response claimed copyright infringement and they said that copyright subsisted in the wave arrangement either as a graphic work or as a work of artistic craftsmanship. The Judge did not agree that you could have copyright as a graphic work in the design of the wave arrangement but he did look more closely at whether it could be considered a work of artistic craftsmanship. In making his decision, the Judge first considered whether the weave pattern could be considered a work and he set out two considerations. Firstly, is the work original in the sense of being the author's own intellectual creation? And secondly, is there an expression of the original subject matter? i.e. has it been recorded or fixed in some form and so it is not just a mere idea, you have got to have something a bit more than just your musings on the matter, you have got to have it recorded in some way. If the article could satisfy both of these requirements, the Judge held that it could be considered a work. The Judge then went on to consider the tension between UK and EU case law regarding works of artistic craftsmanship and he found that the wave pattern was both the author's own intellectual creation but also that it possessed aesthetic appeal and so he did not have to make a ruling in this case on whether the weave design formed a work of artistic craftsmanship because he found that it had already crossed the threshold in to what existed under EU case law. However, he did provide more general guidance on the issues of works of artistic craftsmanship explaining that a work of artistic craftsmanship can now be made using a machine and that the aesthetic appeal of a work can be appeal to customers and that a work is not precluded from attracting copyright protection simply because multiple copies are made. These were quite major divergences from the previous UK case law which had said that everything had to be handmade, it had to be one-off bespoke pieces.
So it is really looking at expanding the category of works of artistic craftsmanship so I have just set out here some thoughts on what it could all mean. My first bullet point is, is this the end of the closed list of LDMA works will it open the floodgates for wider copyright protection for different types of works? Personally, I think it is highly unlikely, it is clear from the Court's decision in Response Clothing that they are reluctant to move too far away from the statutory list even when thinking about the works of artistic craftsmanship they were already talking about aesthetic appeal. So, there is that reluctance to move away from it but I do think that the Courts will probably have to start diluting the definitions of what might be considered a work in order to ensure that the works that are original can be afforded some level of protection. As I have said, the categories, or the existing lists of works, are part of national statute so for there to be a real change the statute in legislation will have to be repealed and I also think that with Brexit it is unlikely that policy makers are ever going to want to be seen to be moving more towards an EU or continental way of thinking rather than maintaining the UK or English lists of copyright protection.
My second bullet point is about it being potentially good news for brand owners of classic designs. If a company can show ownership of a classic design i.e. show when it was created and who it was created by and that the company owns the design or the artistic work underlying the design, then it may able to rely on copyright for those products. This will be really beneficial to a lot of luxury brand owners as well, so designers of iconic handbags or jewellery or classic cars, they might be able to claim copyright protection in the artistic works underlying the cars or underlying the design of the cars for example. Previously they would not have been able to rely on this copyright protection because multiple copies of the product would have made so of course cars are made in factories and things like that, but if there is that level of skill and craftsmanship there is no reason why some luxury goods could not fall into the categories where you are now attracting copyright protection. I think provided that you can show at all times the design was original that that is the most important thing for at least crossing that first hurdle. I know that we have already seen some instances of this in places like Italy where Ferrari had a successful case claiming copyright infringement in the design of the shape of one of their cars but there is no known reason necessarily why they should be limited to luxury goods industries either given that the EU requirement is only that level of originality. There does seem to be a reluctance from the UK courts to move away from the idea of aesthetic value so one of the ways that they might do this is the definition of originality might become more restricted, it might become more stringent in order to offset the dilution of the categories so we will just have to see how that plays out.
Finally, given that copyright lasts significantly longer than registered design right or unregistered design right it just gives brand owners a new way of thinking about how to protect their products when dealing with copycats and infringers. So they are just some things to think about. It is all fairly new in terms of coming into practice but it is one thing that we are certainly trying out with the clients at the moment.
So, finally just before I finish I wanted to give you some take away points just to think about.
Firstly, my main take away is that copyright is useful and relevant to all businesses it is not just creative industries. I know that there might well be a preconception about this and with good reason because creative industries do have to rely on copyright law but it can apply to clients in all fields. If you create new material, you will have some level of copyright protection.
My second take away point is please keep records. If you have not started this already, it is never too late to start adopting best policy and best practices. You can think you might already have started this at some point and you might need to go back to it or you might need to start entirely from fresh and it is kind of giving your business a copyright health check. You can do this yourself. You can come to see us to talk about what kinds of copyright might subsist in your work and what you might need to be plugging the gaps in the ownership or recording or documenting. My advice on this is definitely do it at the time. Do not leave it until, say you have worked with an agency to develop a new advert or something, do not leave it until after you have stopped working with them to get those records up to date and to get everything in place. It is much better to do it whilst your working relationship with a business is good.
Finally, my last take away point is to keep your records up to date, diarise every half year or so just to keep an eye on things and do an audit, just to check that all of the documents that you need are there and just to keep on top of it so that should you ever need to take urgent action against an infringer, you have everything lined up.
So that is it from me, I hope it gives you a helpful overview of copyright and how it can be used by brand owners and I think we are going to have a few questions so let me just end my slideshow.
John: Thank you Khemi. Well done. That is excellent and very interesting. We have had quite a few questions as we have gone along, I have tried to answer some of them as we have gone along so I think if I have answered a question you will see the answer, everybody should be able to see the answers. One of them was about the case links. What I have done is I have tried to find them all while Khemi has been talking and I have shared them but we will circulate them all afterwards as well as I may have missed some and we have written a few articles on this topic as well so we will share all of that with you afterwards.
First one, Khemi, is you have said that copyright is free in the UK but does it cover the UK territory only? I appreciate that is quite a big question but do you want to give a brief answer to that?
Khemi: Yes so copyright once it arrives in the UK it is not that it just covers copyright in the UK only it will have reciprocal protection in other places but it is about checking in each of those territories whether there are any additional formalities to protect your copyright in those locations. So taking China as a common example, I know that that is an important territory for a lot of brand owners. I know our team out there take a lot of time to register and make sure copyright registrations are in place out there so that it can be properly enforced, so I think depending on where you are thinking about, I think the best way to do it is to identify key territories and then to think about what formalities might need to be in place in those territories. I do not know if you have anything else to add there John?
John: No I think that if you are not sure, come and ask us but actually copyright is one of the most international of the rights because it generates automatically you will find that thanks to the international treaties it is protected in a lot of the world but as Khemi says there are areas in which you do have to register it before you can enforce it or things like that so, if in doubt, talk to us but that is part of getting your ducks in a row. For particular jurisdictions that are important, check out whether it is just completely automatic or whether or not there is more you need to do. In the UK and the EU, which we sadly have to describe as two separate jurisdictions now, they are all treated the same because the law is largely harmonised.
Another question Khemi, you were talking at the very end of your presentation about the importance of records, a lot of the people on this webinar are not doing IP every day, they are general lawyers or even business people and so they cannot spend a lot of time worrying about copyright but they want it I imagine. I am putting words in all of your mouths, apologies if I have got that wrong, but how would you recommend that people do that practically?
Khemi: Each business will have their own way of identifying a work or a project that has been going on. I will create something as an example, if you were working on a new product and then you subsequently instructed an agency to create an advert for that product or to create a product brochure or to create some marketing for your website, anything that you did with that agency I would firstly be checking your agreements to make sure that you are having the copyright assigned back to you so that you own the copyright. Once you have that information, you also want to be collecting all of the sketches that you can, any development ideas and really then saving them as preferably electronic files because then they are easier to search at this end. I would try and make them searchable if you can in case you need to look for specific words and then in terms of titling them and things like that, record the date that the file was created, record the person who created the file so that you have got details of the owner but also flag if it is confidential as well as things are part of confidential information. Please put that in the title so that not everybody is having access to these things and save them in secure places that are password protected folders if they are confidential. It is about really just protecting business interests it is not even necessarily about the IP focus on it, it is about commercial business interests and making sure that all of that is securely saved and in a way that makes sense to the business as well. It has to be something that you can go and find quickly and clearly so that being organised and being on top of it at the start takes a little bit of time but it can pay dividends when you have an urgent situation I think that is my main point on that.
John: I think there is a point here that it is about setting up the right procedures. It is about making sure that as things are designed, you are not having to worry about every work as it is created. It is having a system in place so that things are done automatically or they should be done automatically and investing that bit of time and perhaps even talking to somebody like us about how best to do that system will pay dividends later. The two times that I think we have the most problems with copyright in terms of enforcing it are, one, where there has been a corporate transaction and nobody has cared enough about the records of individual works. It is not the same as, for example, a trademark certificate or something which is easy to search, the copyright works are many and unidentifiable at the point of a corporate transaction so people do not care enough about them so spend more time on it at that stage, but if the systems are in place then that should not be a problem. The other time is when you have had third parties who have done design for you. The classic one is advertising agencies but it could be your factories in China, it could be wherever, if they are creating some things for you, if you have not had an assignment of those rights, going to them cap in hand when you really need them later may be a problem. We have had some examples of clients who their advertising agencies no longer work for our client and actually they may have created the infringing one. That sort of thing can happen and they are unlikely to assign you the rights at that stage to allow you to enforce them against them. So there are times when it is pretty obvious that you should have done it earlier and it would have been an easy thing to do at the point of the pitch process for a new advertising agency or just doing the contract with a provider. At that point, people will normally agree to assign copyright. They may ask for a bit more money in return for it because it is something they get to keep but it is something that is much easier to ask for when they still want your business than it is after the event. There are simple things like that, it is just a few things like that that if you just get it sorted at the beginning it is much easier.
So many questions, so many questions. Right, next one. We will finish at 11.00am I promise, I just want to make sure we get to as many of these as possible. Very quickly Khemi, you mentioned the flexibility of use in relation to social media. Can you expand on that at all relating to social media and advertising campaigns for example?
John: One final point, sorry we are not going to get to all the questions and if we have not got to your question, I am sorry we will get in touch with you afterwards, but one quick answer to one question which was, what we think of WIPO PROOF. For those of you who do not know, WIPO PROOF is a service which effectively provides a digital date stamp for your works. There are lots of those sorts of services out there, I know that Acid operates a similar system and there are various others. Some people even use the registered design system as a way of date stamping their works because you can file them as registered designs and the cost is about £2.00 per design and then you get both systems as part of that. They are all good but having internal record keeping that independently dates the documents is also possible or uploading it to something like Google Drive or anything like that, something where there is an external date stamp on it is good. So anything like that you will need to know if for your own systems whether or not that is something that is possible because if you produce so many designs it may not be possible to upload every last one to an external provider.
I am conscious of the time, we are going to leave it there and thank you very much Khemi for setting everything out and more importantly thank you to all of you for joining and we have had I think one of our highest attendances ever at one of our events which we are delighted about so that you so much. Please do not forget the feedback form and we look forward to seeing you, maybe even in person, later this year for our next series of webinars.
Thank you very much.
Khemi: Thank you so much.
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